Since Mark Tushnet revived the study of slave laws in the American South, several historians, most notably Paul Finkelman, Thomas D. Morris, and Ariela Gross, have followed in his footsteps. Laura F. Edwards’sThe People and Their Peaceis a book that extends this trend in scholarship. Focusing on North and South Carolina from roughly 1787 to 1840, and more specifically on three North Carolina counties and four South Carolina counties during that time, Edwards situates local law in contradistinction to state law, portraying the former as polycentric and heterogeneous and the latter as centralized and homogenous. Edwards suggests that state law was more aspirational than practical in the early nineteenth-century Carolinas because it failed to inform ordinary legal practice at the local level in the same way that resident culture or custom did.

Pitting “reformers” (elite individuals who sought to create a uniform and consolidated body of rules that appellate courts could enforce at the state level) against locals, Edwards demonstrates that the legal system was bottom-up and not top-down and that law on paper or in statutes was different from law in practice. On paper or in statutes, law subordinated lower courts to appellate courts and seemed, in keeping with the reformers’ ideals, systematized into a unitary, integrated order that reflected the supposedly natural and inevitable unfolding of history. Reformers selectively compiled local laws and practices into lengthy works to forge the impression that law was a set of consistent, underlying principles. In practice, however, law was variable, contingent, and contextual. It emerged from the workaday and quotidian operations of individuals in towns and communities. Law was therefore as messy as it was unpredictable, and it cannot be understood today without a deep knowledge of interpersonal relationships and cultural conditions in locales where courts sat. Slave codes, for instance, did not reflect realities on the ground because they were handed down by state legislatures and could not account for the reputations and routines of people in local communities—people who cared less about consistency in the law or about fixed principles than about their personal stake in any given legal matter.

This book is a corrective to histories interested principally in local legal sources but neglectful of the particularities that brought about these local sources. It marshals evidence from legal documents—especially case decisions, including appellate opinions—while considering why and how those documents were produced. The development of state law became increasingly important during the antebellum years, but the rise in state law—which privileged narratives of individual rights, standardized legal principles, and enabled southern distinctiveness—does not make sense apart from local data. Local data reveals much about the processes (as opposed to philosophies) of law. Put differently, local law remained discretionary because it was fluid and not subject to abstract and purely notional mantras about rights. Read the rest of this entry »

Nicole N. Aljoe has published an intriguing article in Volume 46 (issue no. 2) of Early American Literature (2011), which is published by the University of North Carolina Press. The article is titled “‘Going to Law': Legal Discourse and Testimony in Early West Indian Slave Narratives.” It is available here on Project Muse. The abstract is below:

Despite the fact that the courts had not proven consistently helpful in their quests for freedom, British West Indian slaves frequently consulted them in order to invoke the rule of law and pursue their rights. Several Caribbean historians have documented the ways in which slaves in the West Indies participated in formal legal arenas almost from the initial days of colonization and claimed the courts as one of their own forums for resolving disputes and asserting those few rights written into the various parliamentary acts intended to ameliorate the conditions of the enslaved and passed in England and its Caribbean colonies from 1788 onward. Indeed, slaves in the West Indies participated in the courts systems as plaintiffs as well as defendants more frequently than previously thought. And although the courts were certainly used by those in power to oppress slaves, women, children, and the poor, as well as to “legitimate [the] blatantly repressive regime” of slavery, they nevertheless provided a forum for those who did not write the laws in question to use the courts to ensure the legal protection of their “natural rights” (Lazarus-Black, “John Grant’s” 154). Thus, in another of the seemingly endless paradoxes inherent to the British imperial slave system, slaves—objects of property, yet human subjects—could, in certain situations, use the courts in the West Indies and in England on their own behalf, as legal agents to affirm their status as legal subjects deserving of the law’s unbiased protection, and judgment.

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field. Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century. Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property. Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself.

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law. Indians were not enslaved as often or in the same numbers as blacks. The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux. Law had to define people by race and then determine their free or slave status afterwards. Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law. The origins of Southern slave law are traceable to at least Virginia. The degree to which Virginia followed or revised the common law is debatable. In early Virginia, many blacks were treated as indentured servants, not slaves. Not until the mid-seventeenth century did blacks become routinely associated with slavery. There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions. A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem. The traditional common law rule was that the child’s status followed the father. Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery. Some judges analogized slavery to English villenage. The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »

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